(PC) Howell v. Burns ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KAREEM J. HOWELL, No. 1:19-cv-00556-JDP 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. THAT PLAINTIFF BE PERMITTED TO PROCEED ON COGNIZABLE CLAIM AND 14 J. BURNES, et al., THAT NON-COGNIZABLE CLAIMS BE DISMISSED WITHOUT PREJUDICE 15 Defendants. OBJECTIONS, IF ANY, DUE IN 14 DAYS 16 17 Plaintiff Kareem J. Howell is a state prisoner proceeding without counsel in this civil 18 rights action brought under 42 U.S.C. § 1983. On August 7, 2019, I screened Howell’s complaint 19 and found that he stated an excessive force and a First Amendment claim against defendant 20 Burnes, as well as a deliberate indifference claim against defendant Magallanes, but no other 21 claims. See ECF No. 9. That order gave Howell three options: (1) proceed only on the claims 22 found cognizable, (2) amend the complaint to add additional facts to make out additional claims, 23 or (3) stand on the current complaint subject to dismissal of claims and defendants. On August 24 23, 2019, Howell filed a notice indicating his desire to proceed only on the claims deemed 25 cognizable. ECF No. 10. Accordingly, I recommend that his remaining claims be dismissed 26 without prejudice. 27 RECOMMENDATION 28 Under 28 U.S.C. § 636(c)(1), all parties named in a civil action must consent to a 1 | magistrate judge’s jurisdiction before that jurisdiction vests for “dispositive decisions.” Williams 2 | v. King, 875 F.3d 500, 504 (9th Cir. 2017). No defendant has appeared or consented to a 3 | magistrate judge’s jurisdiction in this case, so any dismissal of a claim requires an order from a 4 | district judge. /d. Thus, the undersigned submits the following findings and recommendations 5 | under 28 U.S.C. § 636(b)(1): 6 1. Plaintiff states a cognizable excessive force claim and a First Amendment claim 7 against defendant J. Burnes, as well as a deliberate indifference claim against 8 defendant Magallanes. 9 2. Plaintiff's remaining claims should be dismissed without prejudice. 10 Within fourteen (14) days of service of these findings and recommendations, plaintiff may 11 | file written objections with the court. If plaintiff files such objections, he should do so in a 12 || document captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 13 | Plaintiff is advised that failure to file objections within the specified time may result in the waiver 14 | of rights on appeal. See Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing 15 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 7 IT IS SO ORDERED. 18 ( Caan Dated: _ September 5, 2019 19 UNI STATES MAGISTRATE JUDGE 20 21 22 No. 205 23 24 25 26 27 28